Illinois Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[SPATS No. IL-094-FOR]

Illinois Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving amendments to the Illinois regulatory program

(Illinois program) under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The

[[Page 6192]]

Illinois Department of Natural Resources (Department) sent us revisions

to the Illinois statutes pertaining to definitions and areas unsuitable

for surface coal mining operations. The Department also proposed

revisions to and additions of regulations concerning a definition for

``previously mined area,'' areas unsuitable for surface coal mining

operations, permitting, violation information, impoundments,

explosives, revegetation, prime farmland, bonding, administrative and

judicial review, and blasters certification. The amendments are

intended to revise the Illinois program to be consistent with the

corresponding Federal regulations and SMCRA, to clarify existing

regulations, and to improve operational efficiency.

EFFECTIVE DATE: February 9, 1999.

FOR FURTHER INFORMATION CONTACT:

Andrew R. Gilmore, Director, Indianapolis Field Office, Office of

Surface Mining Reclamation and Enforcement, Minton-Capehart Federal

Building, 575 North Pennsylvania Street, Room 301, Indianapolis,

Indiana 46204-1521. Telephone: (317-226-6700. Internet:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Illinois Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Illinois Program

On June 1, 1982, the Secretary of the Interior conditionally

approved the Illinois program. You can find background information on

the Illinois program, including the Secretary's findings, the

disposition of comments, and the conditions of approval in the June 1,

1982, Federal Register (47 FR 23883). You can find later actions

concerning the Illinois program at 30 CFR 913.15, 913.16, and 913.17.

II. Submission of the Proposed Amendment

By letter dated March 28, 1996 (Administrative Record No. IL-5020),

the Department notified us of revisions to the Illinois Surface Coal

Mining Land Conservation and Reclamation Act (State Act) that were

enacted through House Bill (HB) 965 and signed into law by the Governor

of Illinois on February 7, 1996. These revisions primarily address

changes brought about by the July 1, 1995, reorganization and name

change of the Illinois regulatory authority. Revisions were made to 225

ILCS 720/1/.03, Definitions; 225 ILCS 720/7.03, Procedures for

designation of areas unsuitable for mining operations; and 225 ILCS

720/7.04, Land Report.

By letter dated February 26, 1998 (Administrative Record No. IL-

5009), the Department submitted a proposed amendment to revise its

regulations at Title 62 of the Illinois Administrative Code (62 IAC).

The amendment responded to letters dated January 6, 1997, and June 17,

1997 (Administrative Record Nos. IL-1951 and IL-2000, respectively),

that we sent to Illinois in accordance with 30 CFR 732.17(c). It also

responded to required program amendments at 30 CFR 913.16(w) and (y).

In addition, the Department amended the Illinois program to clarify

existing regulations and to implement the statutory changes made by HB

965.

We announced receipt of the amendments in the April 6, 1998,

Federal Register (63 FR 16719). In the same document, we opened the

public comment period and provided an opportunity for a public hearing

or meeting on the adequacy of the amendment. The public comment period

closed on May 6, 1998. Because no one requested a public hearing or

meeting, we did not hold one.

During our review of the amendment dated February 26, 1998, we

identified concerns relating to 62 IAC 1773.15(c)(11), written findings

for permit application approval; 62 IAC 1778.14(c), required

information in permit applications; 62 IAC 1816.116 and 1817.116,

revegetation standards; 62 IAC 1816.117(c)(3) and 1817.117(c)(3), tree

and shrub vegetation; 62 IAC 1847.3(g), burden of proof for permit

hearings; 62 IAC 1847.9(g), burden of proof for bond release hearings;

and editorial errors in various regulations. We notified the Department

of these concerns by fax on June 2, 1998 (Administrative Record No. IL-

5019). By letter dated November 5, 1998 (Administrative Record No. IL-

5025), the Department sent us additional explanatory information and

revisions to its program amendment.

Based upon the additional explanatory information and revisions, we

reopened the public comment period in the November 16, 1998, Federal

Register (63 FR 63628). The public comment period closed on December 1,

1998.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning the amendment.

A. Revisions to Illinois' Regulations That Are Not Substantive

1. Throughout the amended regulation sections discussed below, the

Department corrected typographical errors, punctuation, citation

references, and other editorial-type errors; made minor wording

changes; simplified its use of numbers; changed specific references of

the ``Illinois Department of Mines and Minerals'' to the ``Illinois

Department of Natural Resources'' to reflect a reorganization change

which was effective July 1, 1995; changed its citation references of

the ``Ill. Rev. Stat. 1989, ch 96\1/2\, pars. 7901.01 et seq.'' to

``225 ILCS 720'' to reflect recodification of the Illinois Surface

Mining Land Conservation and Reclamation Act that occurred in 1992; and

changed all references of the ``Soil Conservation Service'' to the

``Natural Resources Conservation Service'' to reflect that Federal

agency's name change. The Department also made some of the same types

of corrections and changes in 62 IAC 1764.13, 1773,11, 1774.11,

1816.117, 1817.117, 1823.14, 1840.1, and 1850.16.

The above proposed revisions do not alter the requirements of the

previously approved provisions in the Illinois regulations.

Therefore,we find that they will not make the Illinois regulations less

effective than the Federal regulations.

2. 62IAC 1761.12, Procedures for Areas Designated by Act of

Congress. At subsection (b)(1), the Department removed the reference to

section 1761.11(f) or (g). In subsection (b)(2), the Department

replaced the reference to ``Section 1761.11(a), (f) or (g)'' with a

reference to ``Section 1761.11(a)(6) and (7).'' At subsection (c), the

Department replaced the reference to ``Section 1761.11(d)(2)'' with a

reference to ``Section 1761.11(a)(4)(B).''

We find that the revised regulation references at 62 IAC 1761.12(b)

and (c) are consistent with the counterpart Federal regulation

references at 30 CFR 761.12(b) and (d).

3. 62 IAC 1774.13, Permit Revisions. At subsection (b)(3),

references to ``62 Ill. Adm. Code 1773.13, 1773.19(b)(1) and (3) and

1778.21'' were replaced by references to ``62 Ill. Adm. Code 1773.13,

1773.19(a)(3)(A) and (C) and 1778.21.''

We find that the revised regulation references at 62 IAC

1774.13(b)(3) are consistent with the counterpart Federal regulation

references at 30 CFR 774.13(b)(2).

[[Page 6193]]

B. Revisions to Illinois' Regulations That Are Substantively Identical

to the Corresponding Provisions of the Federal Regulations

The State regulations listed in the table below contain language

that is the same as or similar to the corresponding sections of the

Federal regulations. Differences between the State regulations and the

Federal regulations are not substantive.

------------------------------------------------------------------------

State regulation 62 Federal counterpart

Topic IAC regulation--30 CFR

------------------------------------------------------------------------

Definition of Previously 1701.Appendix A..... 701.5

Mined Area.

Violation Information....... 1778.14(c).......... 778.14(c)

Prime Farmlands............. 1785.17(e)(5)....... 785.17(e)(5)

Definition of Other 1816.46(a)(3) and 701.5

Treatment Facilities. 1817.46(a)(3).

Prime Farmland: Scope....... 1823.1.............. 823.1

Prime Farmland: 1823.11............. 823.11

Applicability.

------------------------------------------------------------------------

Because the above revised regulations are identical in meaning to

the corresponding Federal regulations, we find that they are no less

effective than the Federal regulations.

C. Revisions to Illinois' Statutes and Regulations That Reflect

Organizational Changes

1. 225ILCS 720/1.03, Definitions; 225 ILCS 720/7.03, Procedure For

Designation; and 225 ILCS 720/7.04, Land Report. Illinois proposed

revisions to 225 ILCS 720/1.03, 7.03, and 7.04 of the Surface Coal

Mining Land Conservation and Reclamation Act to reflect the merging of

the Department of Energy and Natural Resources and the Department of

Mines and Minerals into the Department of Natural Resources. The

revisions include changes in the responsibility for preparing the Land

Report that is required when processing a petition to designate an area

as unsuitable for surface coal mining operations.

a. 225 ILCS 720/1.03, Definitions. At section 1.03(a)(4), Illinois

changed the definition for the term ``Department'' from the

``Department of Mines and Minerals'' to the ``Department of Natural

Resources.'' At section 1.03(a)(8), Illinois removed the definition of

the term ``Department of Energy.''

b. 225 ILCS 720/7.03, Procedure for designation. At section

7.03(b), the language ``refer it to the Department of Energy for

preparation of'' was replaced by the word ``prepare'' in the phrase

``the Department shall refer it to the Department of Energy for

preparation of a Land Report.'' At section 7.03(c), Illinois changed

the phrase ``Such a hearing shall be held not less than 30 days after

the Department of Energy files a Land Report with the Department'' to

the phrase ``Such a hearing shall be held not less than 30 days after

the Land Report has been prepared by the Department.''

c. 225 ILCS 720/7.04, Land Report. At section 7.04(a), Illinois

replaced the term ``Department of Energy'' with the term

``Department.'' The language ``and referred by the Department to the

Department of Energy for a Land Report'' was removed from the end of

the first sentence. Illinois revised the last sentence to read: ``Each

Land Report shall be completed not later than eight months after

receipt of the petition.'' Illinois removed section 7.04(c), which

required the Department of Mines and Minerals and the Department of

Energy to enter into contracts for all or part of the costs of

preparing land reports.

On July 11, 1995, we approved the merger of the Illinois Department

of Mines and Minerals into the Illinois Department of Natural Resources

(60 FR 35696). On March 1, 1995, the Governor of Illinois signed

Executive Order Number 2 (1995) that authorized this organizational

change. Part IV(F) of the Executive Order required the Department of

Natural Resources to adopt under the Illinois Administrative Procedures

Act those rules necessary to consolidate and clarify the rules that

will be administered by the merged departments. We find that the

revisions to the State Act are consistent with this requirement. We

also find that the revised requirements of 225 ILCS 720/7.03 and 7.04

are no less stringent than the requirements of section 522 of SMCRA for

designating areas as unsuitable for surface coal mining.

2. 62 IAC Part 1764, State Processes for Designating Areas

Unsuitable for Surface Coal Mining Operations. The Department proposed

revisions to its regulations at 62 IAC 1764.15 to reflect the merging

of the Department of Mines and Minerals and the Department of Energy

and Natural Resources into the Department of Natural Resources and to

implement the changes that were made to the State Act relating to the

responsibility for preparing the Land Report.

In section 1764.15(a), the Department added the heading

``Processing of Petitions''; and in section 1764.15(c), the Department

added the heading ``Land Report and Public Comment.'' The language in

the first sentence of section 1764.15(c)(1) was replaced by the

language ``After the petition is determined to be complete the

Department shall prepare a Land Report.''

The Department revised section 1764.15(c)(2) as follows:

The Land Report shall state objectively the information which

the Department has, but shall not contain a recommendation with

respect to whether the petition should be granted or denied. Each

Land Report shall be completed not later than eight months after the

petitioner has been notified the petition is complete under

subsection (a)(1).

At section 1764.15(c)(3), the term ``Department'' replaced the term

``Department of Energy and Natural Resources'' and the term ``Land

Reclamation Division'' replaced the term ``Department.''

We find that the types of revisions made to 62 IAC 1764.15 will not

make the requirements of the Illinois regulation less effective than

the requirements of the counterpart Federal regulation at 30 CFR

764.15, relating to state processes for designating areas as unsuitable

for surface coal mining operations.

D. 62 IAC Part 1773.15, Review of Permit Applications

The Department added the following provision for written findings

at 62 IAC 1773.15(c)(13):

(13) For a proposed remining operation where the applicant

intends to reclaim in accordance with the requirements of 62 Ill.

Adm. Code 1816.116(a)(2)(B) or 1817.116(a)(2)(B), the site of the

operation is land eligible for remining as defined in 62 Ill. Adm.

Code 1701. Appendix A.

In the November 27, 1995, Federal Register (60 FR 58489), we

stated that we interpret 30 CFR 816/817.116(c)(2)(ii) and (c)(3)(ii) as

requiring an existing permit to obtain a permit revision to qualify for

a reduced

[[Page 6194]]

revegetation responsibility period. This permit revision would require

a finding that the permit covers land eligible for remining. This

finding is in accordance with the State's counterpart to 30 CFR

773.15(c)(13)(i). States would also need to make this permit finding

for new permit applications that cover land eligible for remining.

Since the Department had added reduced revegetation responsibility

counterparts to its regulations at 62 IAC 1816.116(a)(2)(B) and

1817.116(a)(2)(B), this requirement would apply to the Illinois

program. In a letter dated October 30, 1997 (Administrative Record No.

IL-2002), we notified the Department that it needed to revise its

regulation at 62 IAC 1773.15(c) to add a counterpart to 30 CFR

773.15(c)(13)(i). We find that the new provision at 62 IAC

1773.15(c)(13) meets the Federal requirement discussed by us in the

November 27, 1995, Federal Register. Also, for the purpose specified,

it is no less effective than the Federal regulation at 30 CFR

773.15(c)(13)(i).

E. 62 IAC 1800.40, Requirement to Release Performance Bonds

At subsection (b)(2), the Department is requiring the permittee,

the municipality and county in which the surface coal mining operation

is located, the surety, or other persons with an interest in bond

collateral who have requested notification under section 1800.21(e),

and the persons who either filed objections in writing or objectors who

were a party to the hearing proceedings, if any, to be notified in

writing of its final administrative decision to release or not to

release all or part of the performance bond.

The counterpart Federal regulation at 30 CFR 800.40(b)(2) also

requires the same persons, with the exception of the municipality, to

be notified in writing. The Federal regulation at 30 CFR 800.40(e)

requires the municipality in which the surface coal mining operation is

located to be notified by certified mail. We notified the Department of

this requirement on December 9, 1998 (Administrative Record No. IL-

5032). By letter dated December 18, 1998, the Department stated that it

will send the municipality in which the surface coal mining operation

is located written notification by certified mail at least 30 days

before the release of all or a portion of the bond (Administrative

Record No. IL-5035).

Therefore, we find that the revised regulation, combined with the

Department's letter dated December 18, 1998, is no less effective than

the Federal regulations at 30 CFR 800.40(b)(2) and 800.40(e).

F. 62 IAC Parts 1816 and 1817, Permanent Program Performance Standards

for Surface and Underground Mining Activities

The Illinois permanent program regulations for surface mining

activities at 62 IAC Part 1816 and underground mining activities at 62

IAC Part 1817 are discussed below. Since most of the surface mining and

underground mining regulations are identical, we are combining the

revisions for discussion purposes, unless otherwise noted.

1. 62 IAC 1816.49 and 1817.49, Impoundments. At sections

1816.40(a)(3)(B) and 1817.49(a)(3)(B), the Department replaced the term

``U.S. Soil Conservation Service'' with the term ``U.S. Natural

Resources Conservation Service'' and changed the date of Practice

Standard IL 378, ``Ponds'' from April 1987 to June 1992.

The U.S. Soil Conservation Service changed its name to the U.S.

Natural Resources Conservation Service on November 9, 1994, and made

revisions to Practice Standard IL 378 in June 1992. Therefore, we find

that these revisions will not make the Illinois regulations less

effective than the Federal regulations at 30 CFR 816.49 and 817.49.

2. 62 IAC 1817.61, Use of Explosives: General Requirements. The

Department revised section 1817.61(a) by adding the language ``that are

within 50 vertical feet of the original ground surface'' to the end of

the existing provision to define the extent of the initial rounds of

slope and shaft development. The revised provision reads as follows:

Section 1817.61 through 1817.68 apply only to surface blasting

activities incident to underground mining, including, but not

limited to, initial rounds of slopes and shafts that are within 50

vertical feet of the original ground surface.

The counterpart Federal regulation at 30 CFR 817.61(a) does not

define the extent of ``initial rounds of slopes and shafts.'' We added

section 817.61 to our regulations to protect the lives and property of

the public, underground mines, and ground and surface waters outside of

the permit areas where surface blasting is required in the development

and support of underground mining operations (43 CFR 41780). We found

in a technical review of the revised Illinois regulation that 62 IAC

1817.61(a) is essentially the same as the Federal counterpart at 30 CFR

817.61(a) except that the State defines the extent of the initial

rounds of slope and shaft development as those ``that are within 50

vertical feet of the original ground surface.'' Neither the Federal

rule nor the associated preambles (43 FR 41780 and 44 FR 15269)

directly include or address the vertical extent of the initial blasting

rounds in slope and shaft development. We clearly intended that section

817.61 through 817.68 apply only to surface blasting activities

incident to underground mining, including construction of initial

rounds of slopes and shafts. It was our ``intent not to regulate

blasting performed underground, because this activity is adequately

controlled by MSHA'' (44 FR 15269). Considering this intent and the

generally small amount of blasting activities associated with slope and

shaft development, the 50-foot vertical extent proposed by the

Department is a reasonable interpretation of ``initial blasting rounds

of slope and shaft development'' and is adequate to protect the public

from the adverse effects of these blasts. Therefore, we find that the

revised Illinois regulation at 62 IAC 1817.61(a) is no less effective

than the Federal counterpart regulation at 30 CFR 817.61(a).

3. 62 IAC 1817.62, Use of Explosives: Pre-Blasting Survey. In the

first sentence of section 1817.62(d), the Department replaced the

language ``published scheduled beginning'' with the language ``planned

initiation.'' The revised sentence reads as follows:

Any surveys requested more than ten calendar days prior to the

planned initiation of blasting shall be completed by the operator

before the start of blasting.

The revised Illinois provision at 62 IAC 1817.62(d) is

substantively the same as the counterpart Federal regulation at 30 CFR

817.62(e). Therefore, we find that 62 IAC 1817.62(d) is no less

effective than the counterpart Federal regulation.

4. 62 IAC 1816.64, Use of Explosives: Public Notice of Blasting

Schedule. a. The Department added the following sentence to the end of

62 IAC 1816.64(b): ``Unscheduled blasting does not include nighttime

blasting, which is prohibited at all times.'' The Department proposed

this language to emphasize its restriction of nighttime blasting and to

clarify that blasting is not allowed after sunset.

The counterpart Federal regulation at 30 CFR 816.64(a)(3) does not

contain this clarification, but 30 CFR 816.64(a)(2) allows

discretionary authority to the regulatory authority relating to

nighttime blasting and time periods for blasting. Therefore, we find

that the revised Illinois regulation at 62 IAC 1816.64(b) is no less

effective than the counterpart Federal regulation.

b. At 62 IAC 1816.64(c)(1), the Department requires publication of

a blasting schedule at least ten days, but

[[Page 6195]]

not more than 30 days, before beginning a blasting program in which

blasts that use more than five pounds of explosive or blasting agent

are detonated. The currently approved language requires that operators

publish the blasting schedule at least 30 days but not more than 60

days before blasting starts.

We find that the revised regulation requirements at 62 IAC

1816.64(c)(1) are consistent with and no less effective than the 10-day

and 30-day requirements at 30 CFR 816.64(b)(1).

c. At 62 IAC 1816.64(c)(3), the Department requires operators to

revise and republish blasting schedules at least 10 days, but not more

than 30 days, before blasting in areas not covered in the current

schedule or if the actual blasting times differ from the time periods

listed in the current schedule for more than 20 percent of the blasts

fired. The currently approved language requires that operators

republish the blasting schedule at least 30 days but not more than 60

days before blasting in the specified areas.

We find that the revised regulation requirements at 62 IAC

1816.64(c)(3) are consistent with and no less effective than the 10-day

and 30-day requirements at 30 CFR 816.64(b)(3).

d. The Department revised 62 IAC 1816.64(d) by changing the

subsection introductory sentence to ``The blasting schedule shall

contain at a minimum''; removing existing paragraphs (1) and (2); and

redesignating paragraphs (2)(A) through (2)(E) as paragraphs (1)

through (5).

We find that the revised Illinois regulation at 62 IAC 1816.64(d)

is consistent with and no less effective than the counterpart Federal

regulation at 30 CFR 816.64(c).

5. 62 IAC 1816.66 and 1817.66, Use of Explosives: Blasting Signs,

Warnings, and Access Control. a. In the second sentence of 62 IAC

1817.66(b), the Department replaced the language ``blasting schedule''

with the language ``blasting notification required in Section

1817.64.'' The Department proposed this revision in order to ensure

consistent terminology and wording throughout its regulations.

We find that the revised regulation language at 62 IAC 1817.66(b)

is consistent with and no less effective than the counterpart Federal

language at 30 CFR 817.66(b).

b. At sections 1816.66(d)(2) and 1817.66(d)(2), concerning blasting

prohibitions, the Department added the language ``unless a waiver is

obtained from the owner of the facility and submitted to the Department

prior to blasting within 100 feet'' at the end of these provisions. The

revised provisions read as follows:

Blasting shall not be conducted within 100 feet of facilities

including, but not limited to, disposal wells, petroleum or gas

storage facilities, municipal water storage facilities, fluid-

transmission pipelines, or water and sewage lines unless a waiver is

obtained from the owner of the facility and submitted to the

Department prior to blasting within 100 feet.

The proposed revisions allow the owner of a utility to waive the

set-back distance of 100 feet. There are no Federal counterparts to the

previously approved blasting prohibitions at 62 IAC 1816.66(d)(2) and

1817.66(d)(2). However, the Federal regulations at 30 CFR 816.64(a) and

817.64(a) allow the regulatory authority to limit the area covered,

timing, and sequence of blasting as listed in the schedule, if such

limitations are necessary and reasonable in order to protect the public

health and safety or welfare. We find that the addition of a waiver

clause to the Illinois regulations at 62 IAC 1816.66(d)(2) and

1817.66(d)(2) will not make them less effective than the Federal

requirements for blasting.

6. 62 IAC 1816.67 and 1817.67, Use of Explosives: Control of

Adverse Effects. a. The Department restructured the provisions of 62

IAC 1816.67(c)(1) and 1817.67(c)(1), concerning air blast monitoring,

by moving the language of paragraphs (1)(A) and (1)(B) to paragraph

(1).

The revised provision at section 1816.67(c)(1) reads as follows:

When the cube root scaled distance, as defined in subsection

(c)(2), to the nearest dwelling, public building, school, church, or

commercial or institutional structure has a value less than 350 and

when the burden to hole depth ratio is greater than 1.0, or the top

stemming height is less than 70% of the burden dimension, the air

blast produced by that blast shall be measured, recorded, analyzed,

and reported pursuant to subsection (g) and section 1816.68(b). This

subsection shall not apply to horizontal blast holes drilled from

the floor of the pit.

The revised provision at section 1817.67(c)(1) reads as follows:

When the cube root scaled distance, as defined in subsection

(c)(2), to the nearest dwelling, public building, school, church, or

commercial or institutional structure has a value less than 350 and

when the burden to hole depth ratio is greater than 1.0, or the top

stemming height is less than 70% of the burden dimension, the air

blast produced by that blast shall be measured, recorded, analyzed,

and reported pursuant to subsection (g) and section 1817.68(b).

We find that the proposed revisions to 62 IAC 1816.67(c)(1) and

1817.67(c)(1) are editorial in nature and do not change the meaning of

the previously approved language.

b. At 62 IAC 1816.67(e) through (h) and 1817.67(e) through (h),

concerning ground vibrations, the Department numbered the existing

provision in subsection (e) as subsection (e)(1); redesignated

subsection (f) as subsection (e)(2); redesignated subsections (f)(1)

and (f)(2) as subsections (e)(2)(A) and (e)(2)(B); and redesignated

existing paragraphs (g) and (h) as paragraphs (f) and (g). Minor

wording changes were made to redesignated subsection (e)(2), and the

revised provision reads as follows:

Blasting shall be conducted to prevent adverse impacts on any

underground mine and changes in the course, channel, or availability

of ground or surface water outside the permit area. Ground vibration

limits, including the maximum peak particle velocity limitation of

subsection (e)(1), shall not apply at the following locations:

We find that the reformatting of 62 IAC 1816.67(e), (f), and (g)

and 1817.67(e), (f), and (g), is editorial in nature. The proposed

language changes to redesignated subsection (e)(2) clarify the intent

of this previously approved provision. Therefore, we find that the

revised provisions at 62 IAC 1816.67(e)(2) and 1817.67(e)(2) are no

less effective than the counterpart Federal provisions at 30 CFR

816.67(a) and (e) and 817.67(a) and (e).

7. 62 IAC 1816.83 and 1817.83, Coal Mine Waste: Refuse Piles. The

Department revised 62 IAC 1816.83(c)(4) and 1817.83(c)(4) by adding the

following new provision at the end of each:

The Department shall require the addition of neutralization

material to be added to the coal mine waste if, based on physical

and chemical analyses, this material is needed to prevent acid mine

drainage. This subsection is also applicable to the reclamation of

fine coal waste (slurry) not meeting the definition of refuse piles.

The new provision was added to clarify that the Department has the

authority to require acid neutralization before the waste is covered

with four feet of the best available material and that coal waste

deposited in slurry ponds is subject to treatment and/or coverage

requirements. The counterpart Federal regulations at 30 CFR

816.83(c)(4) and 817.83(c)(4) do not contain the proposed language.

However, we determined that the requirement to add neutralization

material for the prevention of acid mine drainage is consistent with

the Federal regulation requirements at 30 CFR 816.81(a)(1) and

817.81(a)(1) to minimize adverse effects of leachates on surface and

ground water quality. Therefore, we are approving the new

[[Page 6196]]

provision at 62 IAC 1816.83(c)(4) and 1817.83(c)(4).

8. 62 IAC 1816.116 and 1817.116, Revegetation: Standards for

Success.

a. 62 IAC 1816.116(a)(2)(F) and 1817.116(a)(2)(F), Success of

Revegetation: Augmentation.

In response to the required amendment at 30 CFR 913.16(w), the

Department deleted its provisions at 62 IAC 1816.116(a)(2)(F)(i) and

1817.116(a)(2)(F)(i) that allowed deep tillage without restarting the

five-year period of responsibility on pasture, hayland, and grazing

land areas where the operator had met the revegetation success

standards.

We disapproved these provisions and required the Department to

remove them from the Illinois regulations on May 29, 1996 (61 FR

26801). We find that the removal of these provisions is a satisfactory

response to the required amendment codified at 30 CFR 913.16(w), and we

are removing the required amendment from the Illinois program.

b. 62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G), Success of

Revegetation: Other Management Practices.

The Department added the following new revegetation provisions at

62 IAC 1816.116(a)(2)(G) and 1817.116(a)(2)(G):

(G) Other Management Practices

The Department shall approve the use of deep tillage for prime

farmland and high capability land as a beneficial practice that will

not restart the 5 year period of responsibility, if the following

conditions are met:

(i) The Permittee has submitted a request to use the practice

and has identified the field that will be deep tilled;

(ii) One or more hay crops, or other acceptable row crops, have

been grown or will be grown to dry out the subsoil prior to deep

tilling the field; and

(iii) The Department has determined that the use of deep tillage

will be beneficial to the soil structure and long term crop

production of the field and the benefits will continue well beyond

the responsibility period.

The Department shall notify the permittee in writing of its

decision. Such written notice shall be in the form of an inspection

report or other document issued by the Department.

By letter dated June 15, 1998 (Administrative Record No. IL-5024),

the Department submitted both legal rationale explaining why the

Department believes the amendment is approvable and technical

rationale, with supporting documentation, explaining why the amendment

would promote better reclamation by encouraging a beneficial practice

at optimum timing. The technical rationale will be discussed first.

The technical rationale addresses two aspects, the beneficial

nature of deep tillage with long lasting benefits and the timing of

deep tillage. The Department provided the following explanation of why

it believes that deep tillage is a beneficial practice with long

lasting results.

In Illinois, in areas of a cropland postmining land use, the

normal practice after topsoil replacement is to plant the land into

wheat then hay or directly into hay. This practice is the initial

planting of areas of long-term intensive agriculture which also

includes crop rotations with corn and soybeans, and historically has

been considered the beginning of the responsibility period.

The Department believes that the enclosed technical data

demonstrates that deep tillage is a beneficial practice, its

benefits are increased after one or more hay crops, and its benefits

are long lasting. Deep tillage is universally accepted within the

scientific and mining community as beneficial for soil structure.

Also, these benefits are long lasting beyond any responsibility

period. In the event that an operator has made successful yield(s)

prior to deep tillage, the operator and landowner should not be

penalized for going beyond the performance standards and improving

the soil within the responsibility period. The Department is

submitting a publication ``Deep Tillage Effects on Compacted

Surface-Mined Land,'' Soil Sci., Soc. Am. J. 59:192-199 (1995) and

supplemental information ``Long Term Effects of Deep Tillage''

(Second Annual Report, SIU, U of I Cooperative Reclamation Research

Station, March 1996, used with permission from the author). The data

reveals that the positive effects of deep tillage, reduced soil

strength and improved yields, have persisted up to eight years to

date. The data also revealed no disproportionate increase in yield

the first year after deep tillage compared to the following years. A

tour of the study area this year, indicates this trend will likely

continue. A second report ``Profile Modification of a Fragiudalf to

Increase Production'' Soil Sci. Soc. Am. J. Vol 41, 1997, pp 127-

131, concluded that even after 16 years there was no reformation of

the original soil density or soil strength problems which had been

removed by a form of deep tillage and mixing.

The technical documents that the Department submitted successfully

demonstrate that a one-time application of deep tillage is beneficial

to reconstructed mined soils by increasing water movement and aeration

and eliminating high soil strength, with a resulting increase in crop

yields. We agree with the Department's assessment that the publication

``Deep Tillage Effects on Compacted Surface-Mined Land,'' Soil Sci.,

Soc. Am. J. 59:192-199 (1995) and supplemental information ``Long Term

Effects of Deep Tillage'' (Second Annual Report, SIU, U of I

Cooperative Reclamation Research Station, March 1996) prove that the

positive effects of deep tillage, reduced soil strength and improved

yields, persisted through the first eight years of the study. We also

find that the data show no unusual increase in yield the first year

after deep tillage compared to the following years. This study showed

that deep tillage significantly affected crop yield, soil strength, and

net water extracted by growing crops. It showed that average soil

strength decreased with increasing tillage depth and that corn and

soybean yields increased with increasing tillage depth within and

across years. The 1995 publication documented that crop yields

comparable to the undisturbed site were achieved on the deepest tilled

sites in 5 out of 6 years for corn and 4 out of 4 years for soybeans

for the years 1988 through 1993.

The Department provided further explanation of why the benefits are

maximized if soils are deep tilled after one or more hay crops, or

other acceptable row crops, are grown.

The practice of hay cropping the cropland in advance of deep

tillage is a typical management practice on most mined ground. This

practice is promoted in ``Deep Tillage Effects on Mine Soils and Row

Crop Yields,'' Proc. 1987, Lexington, Dec. 7-11, 1987, p. 181. An

additional citation on this issue includes ``Compaction Related to

Prime Farmland Reclamation,'' AMC conference April 29-May 3, 1984,

by D.S. Ralston. The initial hay cropping helps to dry the subsoil

down in order to increase the effectiveness of the shattering effect

of the deep tillage. In addition, this concept was promoted at the

1998 Prime Farmland Interactive Forum, in Evansville, Indiana.

The referenced technical publications document that planting and

managing hay crops, or other acceptable row crops, after reclamation to

allow some initial settling and to obtain a drier subsoil should be

done before deep tilling the soils. One publication considered it

essential that the reclaimed soil be dry for good shattering action of

the rooting media. On the study areas referenced in the 1995

publication, alfalfa was seeded and managed during 1986 and 1987 before

tilling the various test plots in the late summer of 1987.

The Department provided the following legal rationale to support

its belief that the proposed provision is approvable under SMCRA:

Section 515(b)(20) outlines the initiation of the responsibility

period as ``after the last year of augmented seeding, fertilizing,

irrigation, or other work: Provided, that when the regulatory

authority approves a long-term intensive agricultural postmining

land use, the applicable five- or ten-year period of responsibility

for revegetation shall commence at the date of initial planting for

[[Page 6197]]

such long-term intensive agricultural postmining land use.''

A reading of the above wording leads us to conclude that under a

cropland postmining land use, the responsibility period starts at

the time of initial planting and is independent of any augmentative

seeding, irrigation, etc., use to facilitate the establishment of

the permanent vegetative cover required under section 515(b)(19).

This interpretation is further clarified by a reading of the

Illinois statute, Surface Coal Mining Land Conservation and

Reclamation Act, which was approved by the Secretary as no less

stringent than the Federal statute, SMCRA. In the Illinois statute,

Section 3.15(b) identifies the start of the responsibility period as

after the last year of augmented seeding, fertilizing, irrigation,

or other work. A separate Section 3.15(c) clarifies the

responsibility period for long-term intensive agricultural areas

starts at the date of initial planting for the agricultural use.

Historically, deep tillage has been considered an augmentative

practice. Under 30 CFR 816.116(c) and counterpart state regulations,

augmentative practices restart the liability period for cropland. With

the above explanation, the Department is taking the position that the

question of whether or not deep tillage is augmentative is irrelevant

because the limitation on augmentative practices in SMCRA and State law

does not apply to lands with a long-term intensive agricultural

postmining land use. In its letter, the Department did state that it

``will ensure that all other management, e.g., seeding, fertilizing,

etc., are at comparable levels as the surrounding agricultural lands.''

This statement is consistent with the Illinois regulations at 62 IAC

1823.15(b)(3), 62 IAC 1816.116(a)(3)(C), and 1817.116(a)(3)(C).

The criteria for judging proposed state regulations is that they be

no less effective than the Federal regulations and no less stringent

that SMCRA. Based on the Department's technical rationale discussed

above, we find that the proposed rule is no less effective than the

Federal regulations and no less stringent than SMCRA. The Department

has provided clear rationale for why deep tillage is a beneficial

practice and why it is best to delay deep tillage until after one or

more crops have been harvested. Therefore, we agree that the issue of

augmentation is not relevant to the deep tillage provision proposed in

this rulemaking. The Department has provided sufficient technical

documentation to support the practice of deep tillage when implemented

under the conditions imposed in the proposed regulations at 62 IAC

1816.116(a)(2)(G) and 1817.116(a)(2)(G).

The Department's expressed purpose for the proposed provision is

``the allowance for the use of productivity data which was obtained

prior to deep tillage on cropland.'' The Department explained why it

believes that operators should be allowed to use productivity data that

was obtained before deep tillage on cropland:

The existing concept of deep tillage restarting the

responsibility period is a significant deterrent to this universally

beneficial reclamation practice in that it discourages operators

from implementing it at the most efficient time, or from

implementing it at all, if they are successful in achieving

productivity on one or more crops and don't want to start over.

The Department believes the above proposal provides the maximum

benefit toward reclaiming the land as soon as practical, and is in

fact more effective than the Federal regulations and no less

stringent than the Federal statute because it will encourage rather

than impede a beneficial practice. The above also meets the intent

that long-term probability of productivity on cropland is being

achieved and that land is reclaimed as contemporaneously as

possible.

We have historically recognized that deep tillage alleviates

compaction (30 CFR 823.14(d); 48 FR 21452, 21457, May 12, 1983). The

Department has now demonstrated and we agree that deep tillage of the

reclaimed soils of Illinois, under the conditions discussed above, is a

beneficial practice that should not restart the responsibility period.

Because it will not restart the responsibility period, deep tillage

will not affect the collection of crop production data. Therefore,

successful yields of hay crops or other acceptable row crops that are

obtained during the responsibility period, even when they are obtained

before deep tillage, may be counted toward achieving productivity on

prime farmland and high capability land.

OSM has always maintained that the primary responsibility for

regulating surface coal mining and reclamation operations should rest

with the States. The Federal regulations for revegetation were

specifically written to allow States to account for regional diversity

in terrain, climate, soils, and other conditions where mining occurs.

Based on the above discussions, we find that the proposed

revegetation requirements at 62 IAC 1816.116(a)(3)(G) and

1817.116(a)(3)(G) will not make the Illinois regulations less stringent

than the requirements of section 515 of SMCRA or less effective than

the requirements of 30 CFR Parts 823, 816, and 817 of the Federal

regulations for revegetation of mined lands. Therefore, we are

approving the Department's proposed regulations.

c. 62 IAC 1817.116(a)(3)(E), Success of Revegetation: Pasture and/

or Hayland or Grazing Land.

At 62 IAC 1817.116(a)(3)(E), the Department removed the language

``Production for proof of productivity purposes shall also be

determined in accordance with Section 1817.117(a)(2).''

Section 1817.116(a)(3)(E) concerns standards for revegetation

success for areas designated as pasture and/or hayland or grazing land.

Section 1817.117(a)(2) concerns the use of trees and shrubs populations

in determining the success of revegetation for areas to be developed

for fish and wildlife habitat, recreation, or forest products land

uses. Therefore, we find that the removal of this reference to the

Department's tree and shrub vegetation standards for fish and wildlife

habit, recreation, or forest products land uses will not make the

Illinois regulation less effective than the counterpart Federal

regulation at 30 CFR 817.116(b)(1) concerning standards for

revegetation success for grazing land or pasture land.

d. 62 IAC 1816.116(a)(4)(ii), Success of Revegetation: Use of the

Agricultural Lands Productivity Formula.

In response to the required amendment at 30 CFR 913.16(y), the

Department deleted the following language from 62 IAC

1816.116(a)(4)(ii):

The Department may approve a field to represent non-contiguous

areas less than or equal to four acres of the same capability if it

determines that the field is representative of reclamation of such

areas. These areas shall be managed and vegetated in the same manner

as the representative field.

We disapproved this provision and required the Department to remove

it from the Illinois regulations on May 29, 1996 (61 FR 26801). We find

that the removal of this provision is a satisfactory response to the

required amendment codified at 30 CFR 913.16(y), and we are removing

the required amendment from the Illinois program.

G. 62 IAC 1823.12, Prime Farmland: Soil Removal

The Department added a new provision at 62 IAC 1823.12(c) that

allows the B and/or C horizons to be left in place for surface

disturbance areas if the Department determines the soil capability can

be retained.

By letter dated June 17, 1997 (Administrative Record No. IL-2000),

we notified the Department of changes made to the Federal regulation at

30 CFR 823.12(c)(2). The Federal regulation allows the regulatory

authority to approve exceptions from the requirement to remove B and C

soil

[[Page 6198]]

horizons where they would not otherwise be removed by mining activities

and where soil capabilities can be retained. We find that the proposed

Illinois regulation is no less effective than the counterpart Federal

regulation.

H. 62 IAC 1825.11, High Capability Lands: Special Requirements

The Department added the following requirement at section

1825.11(c): ``Measurement of success of revegetation shall be initiated

within ten (10) years after completion of backfilling and final grading

on high capability land.'' The Department proposed this revision to

require operators to initiate crop testing on high capability land

under the same time frame requirements as prime farmland because to

their similarities.

There are no direct Federal counterparts to the Illinois high

capability land provisions. However, we find that this proposal is not

inconsistent with the Federal requirements for revegetation and

restoration of soil productivity on prime farmland at 30 CFR

823.15(b)(1) or the Federal requirements for revegetation at 30 CFR

816.116 and 817.116.

I. 62 IAC 1840.11, Inspections by the Department

The Department clarified its inspection requirements by proposing

revisions to subsections (a) and (b). Subsection (a) was revised to

require the Department to conduct an average of a least one partial

inspection per month at each active surface coal mining and reclamation

operation. Subsection (b) was revised to require the Department to

conduct an average of at least one complete inspection per calendar

quarter at each active or inactive surface coal mining and reclamation

operation.

The counterpart Federal regulation at 30 CFR 840.11(a) requires the

State regulatory authority to conduct an average of a least one partial

inspection per month at each active surface coal mining and reclamation

operation under its jurisdiction. The counterpart Federal regulation at

30 CFR 840.11(b) requires the State regulatory authority to conduct an

average of at least one complete inspection per calendar quarter at

each active or inactive surface coal mining and reclamation operation

under its jurisdiction. Therefore, we find that the revised Illinois

requirements at 62 IAC 1840.11 (a) and (b) are consistent with the

Federal requirements for inspections by State regulatory authorities at

30 CFR 840.11 (a) and (b).

J. 62 IAC 1847, Administravie and Judicial Review

1. 62 IAC 1847.3, Hearings. Section 1847.3 provides procedures for

hearings on exploration applications, new permits, permit revisions,

permit renewals, permit rescissions or transfers, assignments, or sales

of permit rights. The procedures also apply to conflict of interest

hearings, valid existing right determinations, exemption

determinations, formal reviews of decisions not to inspect or enforce,

hearings for permits for special categories of mining, and challenges

of ownership or control links. At subsection (g), the Department

replaced its existing burden of proof provision with the following

provisions:

(1) In a proceeding to review a decision on an application for a

new permit:

(A) If the permit applicant is seeking review, the Department

shall have the burden of going forward to establish a prima facie

case as to the failure to comply with the applicable requirements of

the State Act or regulations or as to the appropriateness of the

permit terms and conditions, and the permit applicant shall have the

ultimate burden of persuasion as to entitlement to the permit or as

to the inappropriateness of the permit terms and conditions.

(B) If any other person is seeking review, that person shall

have the burden of going forward to establish a prima facie case and

the ultimate burden of persuasion by a preponderance of the evidence

that the permit application fails in some manner to comply with the

applicable requirements of the State Act or regualtions.

(2) In all other proceedings held under this Section, the party

seeking to reverse the Department's decision shall have the burden

of proving by a preponderance of evidence that the Department's

decision is in error.

The proposed Illinois provision at 62 IAC 1847.3(g)(1) is

consistent with and no less effective than the Federal burden of proof

provision for new permits at 43 CFR 4.1366(a). The proposed Illinois

provision at 63 IAC 1847.3(g)(2) for all otehr proceedings covered by

this section is consistent with the Federal burden of proof provisions

at 43 CFR 4.1366, 4.1374, 4.1384, and 4.1394 for permit actions,

ownership and control determiniations, and valid existing right

determinations. All of these expressly or in other language provide for

a preponderance of the evidence standard. Therefore, we are approving

62 IAC 1847.3(g).

2. 62 IAC 1847.9, Bond Release hearings: Burden of Proof. At

subsection (g), the Department revised its burden of proof provision by

requiring that ``the party seeking to reverse the Department's proposed

release of bond shall have the burden of providing by a preponderance

of evidence that the Department's decision is in error.''

The traditional Federal burden of proof for civil or administrative

proceedings is proof by a preponderance of the evidence. As discussed

in the above finding, administrative hearings under 43 CFR Part 4

expressly or in other language provide for a preponderance of the

evidence standard. Therefore, we are approving the revision to 62 IAC

1847.9(g).

3. 63 IAC 1847.9(j) and (k), Bond Release Hearings: Written

Exceptions. The Department revised 62 IAC 1847.9(j) and (k) to clarify

that the final decision of the Department in administrative review

hearings for bond release is made by the hearing officer and not the

Director of the Department of Natural Resources. The Department also

proposed to change the time limits for filing and responding to written

exceptions from 15 to 10 days and the time limits for issuance of a

final administrative decision by the hearing officer from 15 to 10 days

if no written exceptions are filed. Specifically, the Department

proposed the following changes:

At section 1847.9(j), the Department is allowing each party to the

hearing to file written exceptions with the hearing officer within ten

days after service of the hearing officer's proposed decision. All

parties shall then have ten days after service of written exceptions to

file a response with the hearing officer.

At section 1847.9(k), the Department revised the existing provision

to read as follows:

If no written exceptions are filed, the hearing officer's

proposed decision shall become final ten days after service of such

decision. If written exceptions are filed, the hearing officer shall

within 15 days following the time for filing a response thereto,

either issue his final administrative decision affirming or

modifying his proposed decision, or shall vacate the decision and

remand the proceeding for rehearing.

The Federal regulations specify general adjudicatory provisions

that States must include in their administrative review hearing

procedures, but allow the States discretion in how to implement these

provisions. This would include the determination of who shall make

final administrative hearing decisions. Therefore, we find that the

designation of a hearing officer to make final administrative hearing

decisions does not make the Illinois regulations less effective than

the Federal regulations. The Federal regulations contain no comparable

provisions to those being revised concerning filing of written

exceptions to a hearing officer's

[[Page 6199]]

decision, time limits for filing written exceptions and responses to

exceptions, and time limits for issuance of a final administrative

decision. However, we find that the proposed regulations at 62 IAC

1847.9(j) and (k) add clarity and specificity to the State program and

are not inconsistent with SMCRA or the Federal regulations.

K. 62 IAC Part 1850, Training, Examination and Certification of

Blasters

1. At section 1850.13(a), the Department may also provide the

necessary training required for blaster certification. This change

allows the Department or the operator or his representative to conduct

blasters training.

The counterpart Federal regulation at 30 CFR 850.13(a) requires the

regulatory authority to provide training for persons seeking to become

certified as blasters. The Federal regulation allows the regulatory

authority to establish the procedures to implement this requirement.

Therefore, we find that the revised Illinois regulation at 62 IAC

1850.13(a) is no less effective than the Federal regulation at 30 CFR

850.13(a).

2. At 62 IAC 1850.14(a) and (b), the Department is revising its

provisions for scheduling examinations and reexaminations for

certification. Specifically, sections 1850.14(a) and (b) were revised

to read as follows:

(a) Written examinations for blaster certification shall be

administered on dates, times, and at locations announced by the

Department via direct communication with operators and individuals

who request in writing to be so notified. All persons scheduled for

a regular examination session will be so notified at least one week

prior to the scheduled exam date.

(b) Reexaminations shall be scheduled, if needed, for those

persons who do not pass the regularly scheduled examination. The

Department shall also allow for examination at this time of those

persons who have newly applied for certification. All persons

scheduled for examination or reexamination during the reexamination

session will be so notified at least one week prior to the scheduled

reexamination session.

The Federal regulations at 30 CFR 850.14 require the regulatory

authority to ensure that candidates for blaster certification are

examined. The Federal regulations at 30 CFR 850.13 require the

regulatory authority to establish the procedures to implement this

requirement. We find that the Department's proposed procedures will

ensure candidates for blaster certification are examined as required by

the Federal regulations. Therefore, we are approving the revisions at

62 IAC 1850.14(a) and (b).

3. The Department revised section 1850.15(a), concerning

application and certification, to read as follows:

Each applicant shall submit a completed application for

certification on forms supplied by the Department. Any applicant

whose completed application has been received, reviewed and accepted

by the Department prior to a regularly scheduled examination session

shall be scheduled for that session. The following documents shall

be included with the completed application form:

The Federal regulations at 30 CFR 850.15 require the regulatory

authority to certify candidates for blaster certification. The Federal

regulations at 30 CFR 850.13 require the regulatory authority to

establish the procedures to implement this requirement. We find that

the Department's procedures at 30 CFR 850.15 will ensure candidates for

blaster certification are certified as required by the Federal

regulations. Therefore, we are approving the revisions to 62 IAC

1850.15(a).

IV. Summary and Disposition of Comments

Public Comments

In Federal Register notices dated April 6 and November 16, 1998, we

requested public comments on the proposed amendment and revisions to

the amendment (63 FR 16719 and 63 FR 63628, respectively).

By letter dated April 10, 1998, we received comments regarding the

Illinois regulation at 62 IAC 1778.14 (Administrative Record No. IL-

5013). Then, by letters dated April 30 and May 6, 1998, we received

comments concerning the Illinois regulations at 62 IAC Part 1847 for

administrative hearings (Administrative Record Nos. IL-5016 and IL-

5017, respectively).

The first commenter objected to the proposed revisions to 62 IAC

1778.14(c), concerning violation information, that were included in the

February 26, 1998, proposed amendment. The commenter objected because

the revised regulation did not limit the violation information

requirements to operations owned or controlled by the applicant. The

commenter stated that the language proposed is identical to the

language of the Federal rules struck down by the United States Court of

Appeals for the District of Columbia Circuit in National Mining

Association v. U.S. Dept. of Interior, 105 F 3d 691 (D.C. Cir. 1997).

The commenter also noted that the proposed language appeared to be

missing pertinent punctuation and language. In its November 5, 1998,

revised amendment, the Department changed its proposed regulation at 62

IAC 1778.14(c) to limit the violation information requirements to

operations owned or controlled by the applicant and added applicable

missing punctuation and language. As noted in finding III.B., the

revised Illinois regulation is substantively identical to the

counterpart Federal regulation at 30 CFR 778.14(c).

One commenter objected to the Department's proposed burden of proof

provision at 62 IAC 1847.3(g)(1) that provides different burdens for

the permit applicant and the non-permit applicant for administrative

review of new permits. As discussed in finding III.J.1., the proposed

provision is no less effective than the counterpart Federal regulation

provision at 43 CFR 4.1366(a), which also provides different burdens

for the permit applicant and the non-permit applicant for

administrative review of new permits.

Two commenters objected to the Department's burden of proof

provisions at 62 IAC 1847.3(g)(2) and 1847.9(g) that provided for a

``clearly erroneous'' standard for administrative review of a variety

of hearing actions and bond release actions, respectively. In its

November 5, 1998, revised amendment, the Department changed the burden

of proof to a ``preponderance of evidence'' standard in both of these

provisions (Administrative Record No. IL-5025). As discussed in

findings III.J. 1. and 2., both provisions are now consistent with the

Federal burden of proof standards at 43 CFR Part 4 for administrative

hearings.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendments from various Federal agencies with an actual or potential

interest in the Illinois program (Administrative Record Nos. IL-5010

and IL-5026).

On April 2, 1998, the U.S. Natural Resources Conservation Service

commented that the reference to the ``U.S. Natural Resources

Conservation Service Practice Standard 378, `Pond,' April 1987'' in 62

IAC 1816.49(a)(3)(B) and 1817.49(a)(3)(B) should be changed to

``Practice Standard IL 378 `Ponds,' June 1992'' (Administrative Record

No. IL-5011).

As discussed in finding III.F.1., the Department made this change

in its November 5, 1998, revised amendment.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get the written

consent of the EPA for those provisions of the program amendment that

relate to air or water quality standards published under

[[Page 6200]]

the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the

Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that the Department proposed to make in this

amendment pertain to air or water quality standards. Therefore, we did

not request the EPA's consent.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendments from the EPA (Administrative Record Nos. IL-5010 and IL-

5026). The EPA did not respond to either request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from

the SHPO and ACHP on amendments that may have an effect on historic

properties. On March 27 and November 6, 1998, we requested comments

from the SHPO and ACHP on the Illinois amendments (Administrative

Records Nos. IL-5010 and IL-5026, respectively), but neither respondend

to our requests.

V. Director's Decision

Based on the above findings, we approve the amendments submitted by

the Department on March 28, 1996, and February 26, 1998, and as revised

on November 5, 1998.

We approve the regulations and statutes that the Department

proposed with the provision that they be placed in force in identical

form to the regulations and statutes submitted to and reviewed by OSM

and the public.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 913, which codify decisions concerning the Illinois

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage Illinois

to bring its program into conformity with the Federal standards. SMCRA

requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each program is

drafted and promulgated by a specific State, not by OSM. Under sections

503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on State regulatory programs and

program amendments submitted by the States must be based solely on a

determination of whether the submittal is consistent with SMCRA and its

implementing Federal regulations and whether the other requirements of

30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

This rule does not require an environmental impact statement since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on State regulatory program provisions do not constitute

major Federal actions within the meaning of section 102(2)(C) of the

National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rules does not contain information collection requirements

that require approval by OMB under the Paperwork Reduction Act (44

U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Therefore, this rule will ensure that existing requirements

previously published by OSM will be implemented by the State. In making

the determination as to whether this rule would have a significant

economic impact, the Department relied upon the data and assumptions

for the corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of

$100 million or more in any given year on local, state, or tribal

governments or private entities.

List of Subjects in 30 CFR Part 913

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 25, 1999.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 913 is amended

as set forth below:

PART 913--ILLINOIS

1. The authority citation for Part 913 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 913.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 913.15 Approval of Illinois regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------

Date of final

Original amendment submission date publication Citation/description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

March 28, 1996 and February 26, 1998. February 9, 1999....... 225 ILCS 720/1.03, 7.03, and 7.04; 62 IAC 1701.

Appendix A; 1761.12; 1764.13 and .15; 1773.11

and .15; 1774.11 and .13; 1778.14; 1785.17;

1800.40; 1816.46, .49, .64, .66, .67, .83,

.116, and .117; 1817.46, .49, .61, .62, .66,

.67, .83, .116, and .117; 1823.1, .11, .12, and

.14; 1825.11; 1840.1 and .11; 1847.3 and .9;

1850.13, .14, .15, and .16.

----------------------------------------------------------------------------------------------------------------

[[Page 6201]]

Sec. 913.16 [Removed and reserved]

3. Section 913.16 is removed and reserved.

[FR Doc. 99-3129 Filed 2-8-99; 8:45 am]

BILLING CODE 4310-05-M